Back
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Anuja Prabhu Dessai, J.
Sameer Dattatraya Deshpande – Appellant
Versus
Kishor Shamrao Jadhav – Respondent
Second Appeal No. 195 of 2022 with Interim Application No. 1427 of 2022
Decided On : 20-06-2022
Obstruction of Decree - Possession - Order 21 Rule 97, 98, 99 - The court adjudicated on the obstruction of the decree for possession of immovable property by a stranger to the decree, who claimed independent right, title, or interest in the property. The court held that the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. The court also emphasized that the executing court is obliged to determine all questions arising between the parties and relevant to the adjudication of the application.
Fact of the Case:
The Plaintiff filed a suit for possession and recovery of arrears of rent against the Defendant, who had sold the property to the Plaintiff but failed to vacate it. The Defendant's legal representatives, the Appellants, claimed independent rights in the property and obstructed the execution of the decree.
Finding of the Court:
The court found that the executing court and the appellate court failed to adjudicate upon the obstruction and the claim of the Appellants, and their observations were in breach of principles of natural justice. The court held that the executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree.
Issues: The substantial questions of law raised in the appeal were: (i) Whether an application under Order 21 Rule 97 of CPC can be filed by a person who is a stranger to the decree; (ii) Whether the decree can be resisted or obstructed on a ground inconsistent with the defence set up by the judgment debtor; (iii) Whether the Order passed under Order 21 Rule 97 is appealable.
Ratio Decidendi: The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. The court also emphasized that the executing court is obliged to determine all questions arising between the parties and relevant to the adjudication of the application.
Final Decision: The impugned judgment and the order of the executing court were quashed and set aside, and the proceedings were remanded to the executing court to adjudicate upon the claim of the Appellants to the suit property after hearing the decree holder as well as the Appellants and pass appropriate orders under Order 21 Rule 97 (2) r/w Rule 101 and 98 CPC.
JUDGMENT
1. With consent, heard finally at the stage of admission.
2. The Appellants herein have challenged the judgment and order dtd. 23/12/2021, passed by the learned District Judge No.3, Kolhapur in Civil Appeal No.66 of 2021. By the impugned judgment the learned District Judge dismissed the Appeal and thereby confirmed the order dtd. 8/2/2021 passed by the learned Joint Civil Judge Junior Division, Kolhpaur in Regular Darkhast No.88 of 2017.
3. The brief facts necessary to decide the Appeal are as under:- The Respondent, hereinafter referred to as the Plaintiff had filed Regular Civil Suit No.819 of 2016 before the CJJD, Kolhapur, for possession and recovery of arrears of rent. The case of the Plaintiff was that Sudhir Dattatray Deshpande, (hereinafter referred to as 'the Defendant') owned the western portion of the property under City Survey No.1185-C/41 along with a structure admeasuring 151.63 sq. meters, situated at Rajarampuri, Kolhapur (hereinafter referred to as the 'suit property'). The Defendant had availed loan from various banks and co-operative credit societies to meet the financial requirements of his family. He put up the suit property for sale to repay the loan. The Plaintiff agreed to purchase the the suit property and upon receipt of the major part of the sale consideration, the Defendant entered into an agreement for sale dtd. 30/05/2011. Upon receipt of the balance sale consideration, the Defendant put the Plaintiff in possession of the suit property and executed a sale deed dtd. 26/04/2016 and thereby transferred the title of the suit property in favour of the Plaintiff.
4. The Plaintiff claimed that since the Defendant was unable to find alternative premises, he requested to permit him to occupy the premises for a period of two months as a care taker. The Plaintiff acceded to the request and by agreement dtd. 31/05/2016 permitted the Defendant to occupy the suit premises as care taker till 24/07/2016 on payment of Rs.16,000.00 per month. The Plaintiff filed the Suit for eviction alleging breach of terms and conditions of the agreement and failure to handover possession of the suit property even after expiry of the agreement.
5. The Defendant admitted that he had availed loan from several banks, credit societies, etc., to meet the financial needs of the family. The suit property was attached in the recovery proceedings initiated by the UCO Bank. He put the suit property for sale to pay off the loans availed from the Bank and to clear other financial liabilities. The Defendant admitted having entered into an agreement for sale with the Plaintiff and having put him in possession of the suit property on receipt of the sale consideration. The Defendant claimed that as per the terms of the subsequent agreement, it was agreed that the Defendant would repay the sale consideration within two years and on receipt of the sale consideration the Plaintiff would cancel the sale transaction. The Defendant was unable to repay the money. Hence, he transferred the property in favour of the Plaintiff by registered sale deed dtd. 26/04/2016.
6. The Defendant denied that he was put in possession of the suit property as a care taker and claimed that he was in possession of the suit property on leave and license basis. He further claimed that he was looking out for alternative premises and had requested the Plaintiff to extend the agreement by two months with an assurance to pay the arrears of rent and to vacate the premises within two months.
7. The Defendant did not really contest the suit but had only sought extension of time to vacate the suit property. Learned Judge by judgment dtd. 6/6/2017 decreed the suit and directed the Defendant to handover possession of the suit property to the Plaintiff within a period of one month and to pay arrears of rent of Rs.32,000.00 and mesne profit. The Defendant neither challenged nor satisfied the decree resulting in filing of Regular Darkhast No.88/2017. The Defendant - Sudhir Deshpa
The executing court is competent to consider all questions raised by the persons offering obstruction against execution of the decree and pass appropriate order, which is to be treated as a decree. T....
The court reinforced that obstruction claims in execution proceedings must be heard to uphold rights, ensuring adherence to natural justice principles.
Rule 97 read with Rule 101 of Order 21 post amendment wherein the executing court has to determine under Rule 101 Order 21 of the Code that the question raised has legally arisen between the parties ....
A third party claiming under a judgment debtor cannot file an application under Order XXI Rule 97; they must file under Rule 99 instead.
The main legal point established in the judgment is that a decree obtained by a tenant against a licensee can be executable against subsequent purchasers who are in possession without any lawful decr....
A person in possession of property has the right to object to the execution of a decree under Order 21 Rule 97 CPC, and the trial court must consider such objections before proceeding with execution.
A person claiming independent right, title or interest in the property can resist delivery of possession even by filing an objection under Order 21 Rule 97 CPC in the executing court itself and if th....
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
